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c . The County ' s obligations hereunder are contingent upon the County ' s timely receipt of 130 , 000 +/- cubic yards of fill material from the developer of Waterway Village, pursuant to a separate Developer ' s Agreement . In the event of any delay in finalizing that separate Developer ' s Agreement or in the delivery of the fill material , then the County ' s obligation to proceed under this Agreement shall be extended at the discretion of the County. In the event the separate Waterway Village Developer ' s Agreement is not finalized within nine months of the effective date of this Agreement, either party shall have the option to terminate this Agreement, in which case no party shall have any further obligation to the other party under this Agreement . 7 . Miscellaneous : a. In the event of any litigation or appeal arising out of this Agreement, the prevailing party shall be entitled to recover attorney ' s fees and costs fiom the non-prevailing party. b . No amendment, modification, change, or alteration of this Agreement shall be valid or binding unless accomplished in writing and executed by all of the parties hereto . C , This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns . d . This Agreement contains the entire agreement and understanding between the parties . No representation, statement, recital , undertaking or promise not specifically set forth herein shall be binding on any party hereto . This Agreement shall not be effective unless signed by NAP , NAP II and County. C , No Building Permit, Certificate of Completion, or Certificate of Occupancy shall be withheld or delayed by the County for Harbor Point, or The Landings , or any portion thereof, nor shall the County delay or withhold any other required permits , due to the County ' s failure to perform any obligation described herein, provided that NAP and NAP II are in compliance with this Agreement and all other elements of the site plan approvals . g. Except as described herein and in the site plan approvals for Harbor Point and The Landings , the County shall not require NAP or NAP II to constrict, contribute to , or share in the costs of any additional off- site improvements , other than the payment of or credits toward applicable impact fees . !:\Bruce\clients\NAP Indian River LLOCombined, amended & restated Agreement 3 . 17. I0.doc 4